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26th April 2019

Tribunal Tale – North West Anglia NHS Foundation Trust v Gregg

Background

Many professions in the UK are regulated by a supervisory authority, such as those in healthcare, law, education and financial services. In some cases, authorities have the power to suspend or revoke an individual’s ability to practise in their field, e.g. where there is or has been a suspicion of misconduct.

Sometimes allegations of misconduct are so serious that they may constitute a potentially regulatory and/or criminal matter, which can lead to different organisations (e.g. the employer, the regulator and the police) wishing to review the issue. Employers may therefore have to consider whether their own processes should be put on hold until the outcome of any third party investigation, or whether the separate investigations can run concurrently.

Employers may also wonder whether an employee who has been suspended by a supervisory authority is entitled to pay during suspension, with the temptation being to withhold pay given that the employee has been rendered unable to carry out their role. However, things may not necessarily be that simple, as the NHS Trust (the Trust) in this case discovered.

The facts of the case

Gregg was employed as a consultant in anaesthetics. Following his involvement in the death of two patients, he was suspended on full pay by the Trust pending an investigation. Given the seriousness of the issue, the medical regulatory body (MTPS) became involved, as did the police.

MTPS decided to issue a temporary suspension order against Gregg, which meant that his licence to practise medicine was withdrawn for 18 months. As a result, the Trust ended its own suspension of Gregg but stopped paying him as he was unable to practise.

Gregg went to the High Court and was granted an injunction that stopped the Trust from continuing with its investigation until the police had completed theirs. The High Court also decided that the Trust had breached Gregg’s contract by not paying him during the temporary suspension. The Trust then appealed to the Court of Appeal (CA).

The CA’s decision

In relation to pay, the CA agreed with the High Court that the Trust should not have stopped paying Gregg during his temporary suspension, as there was nothing in the contract that allowed such a deduction. The CA stated that, as that type of suspension was always a possibility for doctors, if the Trust wished to be able to withhold pay during suspension, the contract should have been clearer on that point.

The CA also considered whether Gregg was ‘ready, willing and able’ to work, and held that because he was, but was prevented from working by a third party (MTPS), the Trust was not able to withhold pay.

In relation to the concurrent investigations, the CA stated that there is no absolute rule preventing an employer from carrying out disciplinary proceedings simply because there is also a criminal investigation taking place. The situation may be different where the internal procedure could present a risk to the fairness of the criminal investigation, but that was held not to apply to Gregg’s case.

The CA went on to say that the Trust had reasonable and proper cause to conduct its own investigation before waiting for the police to conclude theirs, particularly because it could take years in some cases for criminal investigations to be concluded. As such, the Trust did not breach its duty of trust and confidence to Gregg by continuing with its internal processes.

The CA therefore found that the High Court had micro-managed the situation by granting the injunction, and lifted it accordingly.

What does this mean?

The issue of pay on suspension is not a surprising one given Gregg’s employment contract. In most cases involving deductions from or withholding of pay, the first place to look will be the contract to determine what it expressly allows. In this case, there was nothing in writing that allowed the Trust to withhold pay, and the Trust could not establish that such a right was implied by the contract.

The lesson there is that if an employer wishes to withhold pay in the event that it, or a supervisory authority, decides to suspend an employee, it should clearly outline a right to do so in the employment contract. Otherwise, a court will be slow to cut off the employee’s pay, particularly if they are willing to work but prevented from doing so.

The other part of this decision is likely to be helpful to employers, as it confirms that there is no need to adopt a standard approach of allowing third parties to complete their investigations before internal ones can commence.

Of course, there may still be situations where concurrent investigations are not appropriate, and sometimes the police or another third party will ask an employer not to proceed with internal processes until they give the green light. Ignoring such a request or order from the police would not be wise, as you may create a situation where you could affect an ongoing criminal investigation.

If nothing else, that could also put a police spotlight on you as the employer, which is not an enviable position to be in.

If you have any questions on any of the issues raised in the above article please contact Seanpaul McCahill.

26th April 2019